| Mont. | Dec 15, 1868
The record in this case is somewhat voluminous, but it is unnecessary to notice all the errors assigned.
The appellant has preserved in the record his exception to the order of the court below, striking from the files the application for a change of the venue of the cause made by appellant on December 7, 1867.
The grounds upon which respondent’s motion to strike this application from the files was based, were: 1. That a former motion for the same purpose had been filed and overruled; and, 2. That the latter application was not made until the cause had been set for trial. It is to be presumed that these were the reasons which controlled the court in sustaining the motion of respondent.
The latter application was made by appellant under the provisions of an act of the territorial legislative assembly, which was approved on December 6, 1867. The former motion for change of the venue was made under the law previously in force, and was addressed to the discretion of the court, and no error is assigned in overruling it. The appellant was entitled to the benefit of the change in the law, made on December 6th, subsequent to the order overruling his first motion.
The fact that the application was not made until the cause had been set for trial did not justify disregard of the law, which does not designate the time during the progress of an action or proceeding at which the application should be
This brings us to a consideration of the question raised by respondent, as to the validity of the act of December 6, 1867.
It is argued that this act was void, for the reason assumed that it attempted to divest the district court of jurisdiction of a case at common law, over which it had jurisdiction, by virtue of the organic act of this Territory.
By the organic act the judicial power of the Territory is vested in certain courts, and it is ordained, that the jurisdiction of the several courts thereby established “shall be limited by law,” provided, that the “district courts respectively shall possess chancery as well as common-law jurisdiction.” The legislative power is vested in the governor and legislative assembly, and the legislative power extends to “all rightful subjects of legislation, consistent with the Constitution of the United States” and the provisions of “the organic act.”,
The questions involved here are whether the act of the legislative assembly of December 6th, in terms or in substance, divested the district courts of the common law jurisdiction they possessed by virtue of the act of congress; and, secondly, whether the subject embraced was one of rightful legislation within the scope of the legislative-power. So far as the first question is concerned, we do not regard the act of the legislature as affecting the jurisdiction of the district court. It lays down a rule of procedure, in certain cases, for the observance of the courts hi the exercise of their jurisdiction, of the same character as the laws regulating continuances, appeals, new trials, and the entire subject of remedies and of practice. In the respect that it is mandatory upon the courts, it differs from our idea of wise legislation, and the fact that the law was so soon repealed would seem to indicate that the legislature itself became convinced that in such cases a sound discretion should be left to the courts ; but, with the wisdom and policy of legislation, the courts have nothing to do. Refusal to recognize
A division of the powers of government among three co-ordinate departments, as in the federal constitution, the several State constitutions, and in our own organic act, is most wise and salutary, and that each branch should be restricted within its particular sphere of action, is a truism, but to determine the precise boundary between the several departments is sometimes attended with great difficulty. The mere fact that a law requires the performance by a court of a particular act, upon a given state of fact, is not a sufficient test by which to determine its invalidity, and in many instances the legislature may deprive the court of discretion in the exercise of its jurisdiction. To find limitations upon the legislative power we must look to the constitution and acts of congress, and, looking to these, we are unable to find any provision that was violated by the act of December 6th, or to say that it was not upon a subject of rightful legislation. It is also insisted that the court properly struck respondent’s application from the files, for the reason that the costs which had accrued in the cause previous to the application were not paid or tendered by the appellant. This was not one of the grounds assigned by respondent in his motion, and is untenable. The order changing the place of trial should have been made upon condition of payment of the costs. We are of opinion that the court below erred in striking the appellant’s application from the files. The appeal is from the final judgment rendered in the case, but, regarding this error as material, and affecting the judgment, we do not think it proper to discuss the subsequent questions involved in this record. We may say that we are unable to discover in the record evidences of the bias or partiality alleged in appellant’s affidavit, but the statute, being imperative, should have been obeyed, and
The judgment is set aside and the cause remanded to the court below.
Exception sustained.